John Bracken v OzForex Limited - [2022] FWCFB 95

[2022] FWCFB 95

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604—Appeal of decision

John Bracken
v

OzForex Limited

(C2022/2777)

VICE PRESIDENT HATCHER
Deputy president clancy
commissioner lee

SYDNEY, 9 JUNE 2022

Appeal against decision [2022] FWC 879 of Commissioner P Ryan at Sydney on 14 April 2022 in matter number U2021/4619

Mr John Bracken has applied, pursuant to s 604 of the Fair Work Act 2009 (FW Act), for permission to appeal a decision made by Commissioner P Ryan on 14 April 2022[1] to dismiss Mr Bracken’s application for an unfair dismissal remedy against OzForex Limited (OzForex). The Commissioner published his reasons in a separate, confidential decision (reasons) on the same day.

Rule 56(2) of the Fair Work Commission Rules 2013 (FWC Rules) provides that a notice of appeal under s 604 of the FW Act must be filed within 21 calendar days after the date of the decision the subject of the appeal or within such further time as may be allowed by the Commission on application by the appellant. The Commission’s records show that Mr Bracken attempted to email his notice of appeal to the Commission at 11.59.55pm on 5 May 2022 (the 21^st day after the date the decision under appeal was delivered), but entered an incorrect email address. He successfully sent the email to the Commission on 12.01am on 6 May 2022. Due to Mr Bracken’s error, the appeal is by the smallest of margins out of time. OzForex, properly, does not oppose Mr Bracken being granted the requisite extension of time. In the circumstances, we consider it appropriate to extend time for Mr Bracken to file his appeal until 6 May 2022.

Mr Bracken’s grounds of appeal, as stated in his further amended notice of appeal filed on 13 May 2022, are as follows:

“1.In the hearing that is the subject of this appeal, the applicant was not afforded the Common Law right of Procedural Fairness.
I.The respondent was permitted to be represented by a solicitor, even though the respondent was quite capable of representing itself, given it was a large multinational company with unlimited resources, including an in-house legal team. The representation was then upgraded to a Barrister on the day of the hearing without prior notice.
II.The respondent submitted a large and lengthy document, being the AML/CTF Program, Parts A & B on the morning the hearing was to start. The applicant was not given a fair amount of time to review the document or formulate analytical questions for the witnesses, thereby causing prejudice.
III.During the oral hearing, the applicant was not afforded the opportunity to put forward any oral submissions even though new and lengthy evidence was submitted the day before.
IV.The Commissioner did not see fit to question the applicant on any matter(s) that the Commissioner considered were “bare assertions” made by the applicant.
V.It is possible that the Commissioner may have been biased in favour of the respondent, given all orders made were beneficial to that party &

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading John Bracken v OzForex Limited

Details

AGLC: John Bracken v OzForex Limited [2022] FWCFB 95
Case: [2022] FWCFB 95
Decision Date: 9 JUNE 2022

CaseChat Overview and Summary

In the Fair Work Commission, John Bracken applied for permission to appeal a decision made by Commissioner P Ryan, who dismissed Bracken’s application for an unfair dismissal remedy against OzForex Limited. The appeal was technically out of time due to an error in Bracken’s email address, but OzForex did not oppose an extension of time. Bracken’s grounds for appeal included claims of procedural unfairness and errors of law and fact by the Commissioner.

The legal issues before the Vice President were whether the grounds of appeal were reasonably arguable and whether granting permission to appeal would be in the public interest. The Vice President considered each ground in turn, assessing whether they disclosed an arguable case of appealable error. The first ground concerning procedural fairness was largely dismissed as not sufficiently arguable. The second ground regarding alleged errors of law was rejected because Bracken did not specify the errors. The third ground, which alleged a significant error of fact in the Commissioner’s findings, was considered reasonably arguable, particularly in relation to the conclusion that Bracken had committed a substantial and wilful breach of OzForex’s policies justifying his dismissal.

The Vice President concluded that granting permission to appeal was in the public interest only in respect of the third ground, which involved a potentially significant error of fact that could manifest an injustice. Permission was refused for the other grounds as they were not reasonably arguable.

The orders included extending the time for Bracken to file his appeal to 6 May 2022, granting permission to appeal in respect of the third ground only, and refusing permission for the other grounds.

Orders